Rule v International Association of Bridge, Structural, and Ornamental Ironworkers Appellants Reply Brief

    WITH CITATIONS TO PRINTED APPENDIX

IN THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

NO., 7.6-194 5

RONALD RULE, et al.,

Appellants, 

v.

INTERNATIONAL ASSOCIATION OF BRIDGE, 
STRUCTURAL, AND ORNAMENTAL IRONWORKERS, 
LOCAL UNION NO. 396, et al.,

Appellees.

On Appeal From The United States District Court 
For The Eastern District of Missouri 

Eastern Division

APPELLANTS' REPLY BRIEF
■— ■■ ■i.'.a  .t ".1 ■ ' .r .T .i ; . i : :  ■ i ■■■j . ■ -■■■— ■■ r j . ’a  ,i . „ r i.— :1 ' a : 1, .. J.. l ■ ■ i

LOUIS GILDEN
Gilden & Dodson
722 Chestnut Street
St. Louis, Missouri 63101

JACK GREENBERG 
0. PETER SHERWOOD

10 Columbus Circle
New York, New York 10019

ATTORNEYS FOR APPELLANTS



INDEX

Table of Authorities ..................................... ii

I. STATEMENT OF FACTS

A. Introduction ..................................... 1

B. Current Effect Of The Consent Decree ........... 2

C. The Right To Solicit ................................. 3

D. Union Control Of Employment In The Trade ......  4

II. THE DISTRICT COURT ERRED IN DECERTIFYING THE
CLASS ..............................................  5

III. THE DISTRICT COURT ERRED IN REFUSING TO ADMIT
PLAINTIFFS' EXHIBIT 26A ...............................  10

IV. THE DISTRICT COURT ERRED IN REFUSING TO CONSIDER 
CERTAIN EVIDENCE CONTAINED IN THE GOVERNMENT'S
CASE ...................................................  11

A. Evidence From The Government's Case Is
Admissible Under Rules 26(d) and 42(a)
F.R.Civ.P.........................................  12

B. Evidence From The Government's Case Is
Admissible Under Rule 801(d)(2), Federal
Rules of Evidence .........................  10

V. THE DISTRICT COURTS' REFUSAL TO FIND THE 
DEFENDANTS TO HAVE VIOLATED THE TITLE VII 
AND SECTION 1981 RIGHTS OF THE NAMED
PLAINTIFFS WAS E R R O R ..................................  19

A. George Coe .......................................  22

B. Lonnie R. Vanderson ..................................  22

C. Johnnie I. Brown .........................  23

D. Willie West ...................................... 24

Page

i



Page

VI. DEFENDANTS VIOLATION OF THE CONCILIATION
AGREEMENT .........................................  26

VII. CONCLUSION........................................  26

Certificate of Service .................................  27

TABLE OF AUTHORITIES

Cases

Afro-American Patrolman's League v. Duck, 503 F.2d
294 (6th Cir. 1974)   6

Albemarle Paper Co. v. Moody, 422 U.S. 405,
(1975) ...............................................  7,9,26

Arkansas Educational Association v. Board of
Education, 446 F.2d 763 (8th Cir. 1971)    6

Arney v. Geo. A. Hormel & Co., 53 F.R.D. 179
(D.C. Minn. 1971) .................................... 11

Baldwin-Montrose Chemical Co. v. Rothberg, 37 F.R.D.
354 (S.D. N.Y. 1967) ................................  13,14,15

Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir.
1975)   6

ii



Page

Carey v. Greyhound Bus Co., 500 F.2d 1372, (5th
Cir. 1975) ...................................... 6, 9

Cromwell v. County of Sac, 94 U.S. 351 ........... 25

In Re Cessna Air Distrib. Antitrust Litigation,
518 F.2d 213 (8th Cir. 1975) .................. 8

Cypress v. Newport News General & Nonsectarian
Hospital Assn., 375 F.2d 648, (4th Cir. 1967) .. 6

Demarco v. Eden, 390 F.2d 836 (2nd Cir. 1968) .... 6

Duplan Corp. v. Deering Milliken, Inc., 397 F.
Supp. 1146, (D.C.S.C. 1974) ................... 11

Franks v. Bowman Transportation Co., 495 F.2d 398 
(5th Cir. 1974) ................................ 10, 23, 24

Fullerform Continuous Pipe Corp. v. American Pipe 
Construction Co., 44 F.R.D. 453 (D. Ariz.
1968) ........................................... 13, 15

Grogan v. American Brands, Inc., 70 F.R.D. 579,
(M.D.N.C. 1976) ................................ 8

Guerrino v. Ohio Casualty Insurance Co., 423 F.2d 
419 (3rd Cir. 1970) ...... ..................... 15

Ikerd v. Lapworth, 435 F.2d 197 (7th Cir. 1970) ... 13, 15

In Re International House of Pancakes Franchise
Litigation, 536 F.2d 261 (8th Cir. 1976) ..... 8

Manning v. International Union, 466 F.2d 812 (6th 
Cir. 1972), cert, denied 410 U.S. 946 ......... 10

Marquez v. Omaha District Sales Office, Ford Div., 
440 F.2d 1157 (8th Cir. 1971) ................. 19, 24

Miller v. Meinhard Commercial Corp., 462 F.2d 358 
(5th Cir. 1972) ................................ 25

iii



Napier v. Bossard, 102 F.2d 467 (2nd Cir. 1939) ... 18

Parham v. Southwestern Bell Telephone Co., 433
F .2d, 421 (8th Cir. 1970) ...................... 7, 19, 22,

24
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

(5th Cir. 1974) ................................  23

Philadelphia Housing Authority et al., v. American 
R & S Corp., 323 F. Supp. 364 (E.D. Penn.,
1970) ...........................................  9

Reed v. Arlington Hotel Co., Inc., 476 F.2d 721
(8th Cir. 1973) ................................  7

Resendis v. Lee Way Motor Freight, Inc., 505 F.2d
69 (5th Cir. 1974) ..........................  19

Rodriquez v. East Texas Motor Freight, 505 F.2d 40
(5th Cir. 1975)   10

Sagers v. Yellow Freight System., Inc. 529 F.2d 721
(5th Cir. 1976)     19

Salsman v. Witt, 466 F.2d 76 (10th Cir. 1972) .... 18

Shulman v. Ritzenberg, 47 F.R.D. 202 (D.D.C. 1969). 6

Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp.,
62 F.R.D. 454 (N.D. 111. 1974)   11

Underwater Storage, Inc. v. United States Rubber Co.
314 F. Supp. 546 (D.D.C. 1970)   11

United States v. Allegheny-Ludlum Industries, Inc.
517 F .2d *826, (5th Cir. 1975) .................  25

United States v. Burr, 25 F. Cas. 30, (C.C. Va.
1807) ...........................................  7

United States v. Empire Gas Corp., 393 F. Supp. 903
(W.D. Mo.., 1975)   18

Page

iv



Page

United States v. Hayes International Corp., 456
F . 2d 112 (5th Cir. 1972) ............................  19

Wetzel v. Liberty Mutual Insurance Co., 508 F.2d
239 (3rd Cir. 1975) .................................  9, 10

Wilcox v. Commerce Bank, 474 F.2d 336 (10th Cir.
1973) ............................................ .... 9, 10

Wright v. Stone Container Corp., 524 F.2d 1058
(8th Cir. 1975) ...................................... 7

STATUTES AND RULES 

Federal Rules of Civil Procedure

Rule 23 ...........................................  6, 7, 8, 9

Rule 26(D) ........................................  12, 15, 16,
18

Rule 32 (A) (3) ...................................... 16

Rule 42(A) .........................................  12, 13, 15
16, 18

Federal Rules of Evidence

Rule 801 (D) 28 U.S.C.A............................  16, 17, 18

Title vll of the Civil Rights Act of 1964, 42
U.S.C. §2000e, et seq................................ 25

OTHER AUTHORITIES

McCormick On Evidence §257, p. 201 ....................  12

McCormick On Evidence §257, p. 261 ....................  13

5 Wigmore, Evidence, 3d Ed 1940 § 1388 ................  13

v



Page

See Weinsteins Evidence, 9801 (D)(2) [01]
at 1 801-115 .........................................  17

McCormick On Evidence, §262, p. 629 ...................  17

Notes on Advisory Committee On Proposed Rules, Fed.
Rules Evid. , Rule 801 (D) (2), 28 U.S.C.A............ 17

vi



m  THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT 

NO. 76-1945

RONALD RULE, et al.,

Appellan ts,

v.

INTERNATIONAL ASSOCIATION OF BRIDGE, 
STRUCTURAL, AND ORNAMENTAL IRONWORKERS, 
LOCAL UNION NO. 396, et al.,

Appellees.

On Appeal From The United States District Court 
For The Eastern District Of Missouri 

Eastern Division

APPELLANTS' REPLY BRIEF
........  1 asa— a »  *~— i ■ —  * n —  1 11 ■ ■ ■■- —  ................ ■ ■■ ■< ■< cm ss—  —  1 —

1 .

A . Introduction

Plaintiffs-appellants Ronald Rule, et al., hereby reply to the 

brief filed by the defendants-appellees in this case. While the 

defendants criticize the style of plaintiffs statement of the facts 

there is little in their brief that either "supplement(s)" or point 

to "correction of . . . errors and inaccuracies contained in 
plaintiffs statement of the facts." (Defendants Brief at p. 5). To 

the contrary defendants largely re-state facts set forth in plain­

tiffs brief, excluding many of the material facts carefully documen­

ted by plaintiffs in their opening brief.



We address here the few assertions of alleged inaccuracies

to which the defendants have referred.
B . Current Effect Of The Consent Decree

At page 3 of their brief the defendants state that "the
consent decree. . . remains in effect between all parties. . ."
Nothing in this record to~date indicates that the requirements of
the Consent Decree in No. 71-C-559 (2) would normally be effective

1/
beyond November 9, 1976. The defendants representation to this 

Court that the Consent decree is still in effect does suggest that 

they have failed^to achieve the goals set forth in paragraph 2 of 
that court order. At page 11 of their brief

1/ Paragraph 39 of the Consent Decree states: Jurisdiction:
39. The Court shall retain jurisdiction over this action for 

three (3) years from the date of its entry or until such time as 
the Defendants have achieved the objective of this Decree, as set 
forth in paragraph 2 above. The Defendants may apply to the Court 
for termination of this Decree at any time prior to the end of the 
three (3) year period and such a termination may be granted upon a 
showing that the objective of this Decree has been met; the 
Plaintiff will be allowed thirty (30) days to prepare its response 
to any such application for termination. In the event that 
Defendants fail to comply with any provision of this Decree,
Plaintiff United States shall notify Defendants, in writing, of 
such noncompliance. If the Defendants have not, within fifteen (15) 
days after receipt of such notification, remedied such noncompliance, 
United States may apply to this Court for an order to show cause why 
the provisions of this Decree should not be specifically enforced.
(A. ).
2/ As of the time of trial in April, 1975, the defendants had not 
achieved compliance with that paragraph of the Consent Decree. In 
1974 the Minority Training Program accepted only 13 of the 20 train­
ees called for under paragraph 13 of the Consent Decree. (February 
21, 1975 report to EEOC in Px-2) (A. ).

2



defendants intimate that the contractors have joined with the 

union and have adopted the referral procedures set forth in 
the Consent Decree. If this is the case, plaintiffs applaud 
these efforts, albeit belated, to achieve equal employment 

opportunity in the St. Louis ironwork trade.
C. The Right to Solicit
At pages 10-11 of their brief defendants state:

Ninety percent or more of all employment in 
the ironwork industry within the local 396 
jurisdiction is filled by direct hire without 
referral by the union.

Prior to 1972 there was no agreement between 
local 396 and the contractors regarding referral 
of applicants for employment. There was no 
referral system and all employees in the ironwork 
trade could and did solicit their own employment 
directly from contractors.

Plaintiffs have forthrightly stated that work in the 

ironwork trade is obtained primarily by direct hire (Pi. Br. 
p. 17). Prior to and since 1972 contractors would call the 

union hall for referrals when they were unable to find a full 

complement of ironworkers by direct hire. Ibid. (See also 
Tr. 533-34) (A. 997) . Thus even though provision for referrals
by the union was not incorporated into the collective bargaining 

agreements until 1972, the practice of referring ironworkers 
from the union hall was not new (e.g. See Tr. 682, Quick depo. 
at p. 19 and McGowan depo. at p. 89) (A.1145,43 0 1 and406 ) .

3/

3 / The contractors are not parties to the Consent Decree.

3



There is no dispute that permitmen did solicit work prior to 

1972. Whether or not they could do so legally is in dispute.

(See PX-52 at pp. 8-9, Tr. 200, 682 and Quick depo. at pp. 19-20) 

(A.251 ,6 6 4,1145, and430) . There is no dispute that ironworkers 

having less than 6,000 hours of work in the trade prior to the 

date of the 1972 letter agreement were prohibited by that agree­

ment from soliciting work (See Johnson depo. in Government Case 

at pp. 52-53) (A. 424a) and that this new requirement had a major

impact on the employment opportunities of black ironworkers,
4/

including plaintiff Rule. Further there is no dispute that prior 

to 1972 journeyman ironworkers were referred for work before 

permitmen. (See Johnson depo. in Government Case at p. 55 and 

McGowan depo. at p. 108) (A.425,407).

D . Union Control of Employment in the Trade

At footnote 2 the defendants state:

Further, there is no evidence to support plaintiffs' 
statements on pages 5 and 6 of its brief that Local 
396 exercises 'exclusive control' of the ironworker 
trade . . . Prior to the institution of the referral 
system in 1972 no contractor was required to look 
first to the union for workmen. Plaintiffs' asser­
tions are unfounded and totally erroneous and mis­
leading.

Plaintiffs do not claim that Local 396 exercises exclusive 

control of the ironwork trade. Plaintiffs do properly assert 

that the Local 396 exercises, both prior to and after 1972, 

virtually exclusive control of employment in the construction

4/ In fact William Johnson, the Union's business agent admitted 
that the purpose of the 1972 Letter Agreement (DX-E) (A. 273) 
was to institute a seniority system to protect the older, all- 
white ironworkers (See Johnson depo. at p. 87) (A. n o  ) .

- 4 -



ironwork trade. As plaintiffs describe fully at pages 6-9 of 

their brief that control is exercised through its authority 

to admit journeymen, issue permits, indenture apprentices and
5/

enroll trainees. Both prior to and after the institution of 

the referral system in 1972 any contractor having a collective 

bargaining agreement with Local 396 who hired an ironworker who 

was not duly indentured in the Local 396 joint Apprenticeship 

Program or who did not possess a Local 396 journeyman's card or 

a service dues receipt issued by Local 396, would be required 

to terminate that employee on request of the union (See e.g. 

PX-52 at pp. 4 and 8-9) (A. 250 , and 251 ). In short,

every contractor having a collective bargaining agreement with 

Local 396 was (and is) required to hire Union approved workmen 

only, except where the Union fails to supply them after reason­

able notice (See e.g. PX-52 at p. 4) . (A. 250 ) .

II

THE DISTRICT COURT ERRED 
IN DECERTIFYING THE CLASS

The defendants contend that the district court did not 

abuse its discretion when it decertified the class herein. It 

appears that the district court decertified the class on the 

basis of the number of affirmative responses to the 460 

notices mailed. To the extent that the district court based

5/ The Union's authority over apprentices and trainees is 
shared, at least nominally, with contractor representatives.

-5-



its decision to decertify the class merely on the numbers of
responses returned, it failed to properly apply the applicable
law. The test of whether or not a class is so numerous that

joinder of all members is impracticable involves more than a

purely quantitative measurement. See e.g. Shulman v. Ritzenberg,

47 F.R.D. 202 (D.D.C. 1969); Demarco v. Eden, 390 F.2d 845
(2d Cir. 1968) . Clearly, no specific number of class members
is needed to maintain a class action under Rule 23. See

Cypress v. Newport News General & Nonsectarian Hospital Assn..

375 F.2d 648, 653 (4th Cir. 1967). Class actions consisting
of as few as 35, 23 or even 18 persons have been upheld. See
Arkansas Educational Assn, v. Bd. of Education, 446 F.2d, 763

(8th Cir. 1971); Afro-American Patrolman's League v. Duck.
503 F.2d 294 (6th Cir. 1974); and Cypress v. Newport News
General & Nonsectarian Hospital Assn., supra. The district

court's decertification of the class on the basis of failure

of plaintiffs to meet the numerosity requirement of Rule 23(a),
F.R. Civ. P., necessarily implies a finding that joinder is
practicable. Cf. Barnett v. W.T. Grant Co., 518 F.2d 543

547 (4th Cir. 1975). Here the district court did not consider

the impracticability of joinder of the minimum of 323 remaining
6/

class members.
Assuming the district court did-properly apply the 

applicable law, its decision to decertify the class constitutes 
a clear abuse of discretion. See Carey v. Greyhound Bus Co.,

6/ Indeed the district court limited the number of class members 
that could be joined as plaintiffs to the 17 individuals who 
affirmatively requested inclusion. The impracticability of 
joining these few class members as plaintiffs is fully described 
in plaintiffs' main brief at pp. 38-39. It appears that the 
defendants recognize the impracticability of joinder in this 
case given their curious silence on this question.

6



500 F.2d 1372, 1380 (5th Cir. 1975). Rule 23(c) (1) vests the

district court with the discretion to modify the class definition

and to decertify the class at any time before a decision on the
merits. That discretion is not left to the district court's

"inclination but to its judgment and its judgment is to be

guided by sound legal principles." See Albemarle Paper Co.

v. Moody, '422 U.S. 405, 416 (1975) quoting United States v.
Burr, 25 F. Cas. 30, 35 (C.C. Va. 1807). That a mere thirteen

(13%) of those who received notices requested exclusion is not

a basis for decertification of the class, particularly in the
circumstances of this case where the notice expressly advised
class members of their inclusion in the class if they chose not

to return it. The courts have long recognized that in exercising
its discretion under Rule 23(c) (1), F.R. Civ. P., the district
court should read the requirements of Rule 23 (a) liberally in

favor of class certification. This rule applies even more so

in the context of an action brought by Title VII. See e.g.

Reed v. Arlington Hotel Co., Inc., 476 F.2d 721, 723 (8th Cir.

1973) and Parham v. Southwestern Bell Telephone Co., 433 F.2d
421. 428 (8th Cir. 1970). One of the very cases the defendants
cite supports this proposition:

Rule 23 should be liberally construed to 
effectuate the remedial policy of Title VII 
since the conduct . . . proscribed is 
discrimination against a class characteristic.
Wright v. Stone Container Corp.. 524 F.2d 
1058, 1061 (8th Cir. 1975).

In Wright this court upheld the district court's denial of 

class certification but in doing so it stressed the "peculiar 

circumstances" of that case. This Court noted not only the 
plaintiffs' failure, after adequate opportunity for discovery,

7



to identify any person who was subjected to the same or similar 

discriminatory treatment but also that he himself was not an 

adequate•class representative because he had not applied and 

was not qualified for the job in question. 524 F .2d at 1062. 

Here plaintiff Rule identified literally scores of blacks who

were denied referral, admission to JAC and the MTP, were
6/

affected by the 6000 hour requirement, etc. . . (See Plain­

tiff's Statement of Facts). Further Rule and the other plain­

tiffs were directly affected by the very practices complained 
of. (See PI. Br. at pp. 43-64.) In Grogan v. American Brands, 

Inc. 70 F.R.D. 579, 581 (M.D. N.C. 1976), the only other 
Title VII case cited by the defendant, the district court did 

certify the class conditionally even though the record at that 

time consisted of bare allegations.
A brief discussion of the other cases cited by defendant 

in support of a wide Rule 23 discretionary power dispel the 

notion of their applicability to this case. The case of In 
Re Cessna Air Distrib. Antitrust Litigation, 518 F.2d 213 (8th 

Cir., 1975), simply states that an interlocutory order granting 
class standing in an action brought under the Robinson-Patman 
Act is notsubject to appeal. Similarly unrelated to the issue 

at hand is the case of In Re International House of Pancakes 
Franchise Litigation, 536 F.2d 261 (8th Cir., 1976), involving 
a claim that denial of a motion to be excluded from an anti-

6/ And of course seventeen (17) of the members of the class 
affirmatively sought to be represented by plaintff Rule.

8



trust class action was an abuse of discretion, despite the fact 
that appellant willfully ignored the deadline for exclusion 

- the disregard of a clear deadline serving to provide the Court 

with a standard for the exercise of its discretion. Appropri­

ately, the denial was upheld.

Defendant also cites the case of Philadelphia Housing 

Authority et al. v. American R&S Corp0, 323 F. Supp. 364 (E.D. 
Penn., 1970). However, that case involved a dispute over 

whether an appropriate class should have been determined before 
settlement was proposed. The "wide discretion" granted the 

judge under Rule 23 resulted in the original procedures being 

upheld but the case again has no relevance to a Title VII action, 

against which a judge's Rule 23 discretion "must be balanced with 

the nature and intent of the Civil Rights Acts, whose purpose 

is to provide a broad remedy for all who fit the plaintiff's 

class." Carey v. Greyhound Bus Co., Inc., supra at 1380. Even 

more inappropriate is defendant's citation of Wilcox v. Commerce 
Bank. 474 F.2d 336 (10th Cir., 1973), which involved a denial of 
class status in an action under the Truth in Lending Act, the 
Court observing that "nothing in the Truth in Lending Act . . . . 

suggests a Congressional intent that such cases should always, 
or generally, be handled as class action." Both the courts and 

Congress have recognized the class action as an appropriate 

vehicle for challenges to discriminatory employment practices.

See e:.c[. Albemarle Paper Co. v. Moody, supra, 422 U.S. at 414 
n. 8 and Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 
250 (3rd Cir., 1975).

9



In summary, discrimination on the basis of race is

indubitably a class wrong. Franks v. Bowman Transportation Co., 

495 F.2d 398 (5th Cir. 1974); Wetzel v. Liberty Mutual Insura­

nce Co., supra, and a suit charging employment discrimination 

is naturally "a sort of class action for fellow employees sim­

ilarly situated." Rodriqez v. East Texas Motor Freight. 505 

F.2d 40, 50 (5th Cir. 1974). Thus, this case presents the 

instance postulated in Wilcox where "the class action procedure 

is so manifestly superior . . . that an appellate Court on 

review would be warranted in reversing the trial court's deter­

mination to the contrary." Wilcox v. Commerce Bank, supra at 

348; Manning v. International Union, 466 F.2d 812 (6th Cir.

1972) cert. denied 410 U.S. 946.

III.

THE DISTRICT COURT ERRED 
IN REFUSING TO ADMIT 
PLAINTIFFS1 EXHIBIT 26A

The crux of defendants' argument apropos the exclusion of 

Exhibit 26A is that its disclosure of the exhibit was not 

voluntary but rather compulsory pursuant to Notice to Produce at 

Trial, and that the first opportunity defendants had to assert 

the attorney-client privilege in relation to Exhibit 26A was at 

the trial itself (Defendant's Brief at p. 23). Moreover,

defendant argues that it "could not invoke the attorney-client 
privilege in regard to a document it refused to produce at

10



trial", and that it "had no choice" but to produce Exhibit

26A and object at trial (Defendants' Brief at p. 24). In so 

contending defendant fundamentally misconstrues the applicable 

law which is adequately set forth in plaintiffs' main brief.

We add only that if the defendants wished to protect the pri­

vilege it was their obligation to object to the production of 

any allegedly privileged document prior to its delivery to 

plaintiffs. The district court would then have examined it in 

camera and ruled on the defendants' objections. By delivering 

the document to plaintiffs, without objection, any claim of 

privilege was waived. Underwater Storage, Inc., v. United 

States Rubber Co., 314 F. Supp. 546 (D.D.C. 1970); Puplan Corp. 

v. Peering Milliken, Inc., 397 F. Supp. 1146, 1162 (D.C.S.C. 

1974); Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp. 62 

F.R.D. 454 (N.D. 111. 1974); and Arney v. Geo. A. Hormel & Co. 

53 F.R.D. 179, 181 (D.C. Minn. 1971).

IV.

THE DISTRICT COURT ERRED IN 
REFUSING TO CONSIDER CERTAIN 
EVIDENCE CONTAINED IN THE 
GOVERNMENT'S CASE____________

In responding to plaintiffs' contention that the district 

court judge erred in refusing to admit into evidence certain 

portions of depositions and answers to interrogatories filed in 

Civil Action No. 71-C-559(2)

defendant's state in a conclusory fashion that the evidence is 

inadmissible for lack of "total identity of parties in both

11



actions, no substantial identity of issues and common 

questions of law and fact." (Defendants' Brief at p. 26) 

Furthermore, defendants' assert that plaintiffs'have not met 

the standards set forth in their own cited cases. Defendants’ 

assertions rest on a fundamental lack of understanding of the 

applicable law.

A. Evidence From The Government's Case Is 
Admissible Under Rules 26 (d) and 42 (a)
F.R. Civ. P.

Defendants acknowledge that the same underlying issue of

unlawful racial discrimination is involved in both cases,

(Appellees Brief at p. 26) yet attempt to distinguish the two

actions on the ground that Civil Action No. 71-C-559(2) was

brought by the United States pursuant to Section 707 of Title

VII. While Sections 706 and 707 merely set forth separate

jurisdictional cases for suits by private parties and the

Government, the duties imposed on the defendants by Title VII

are the same regardless of who is seeking to enforce them.
2/

The remedies available are also the same. Moreover, it is 

clear that "neither the form of the proceeding, the theory of 

the case, nor the nature of the relief needs to be the same" 

for evidence of a prior proceeding to be admissible in a 

subsequent proceeding. McCormick on Evidence §257, p. 201. 

Nor must the parties be identical. See Ikerd v. Lapworth,

7/ Of course, private plaintiffs but not the Government are 
entitled to attorneys' fees.

- 12 -



435 F.2d 197 (7th Cir. 1970). It is generally recognized

that the test of admissibility of prior recorded testimony

is not "a mechanical one of identity or even substantial

identity of issues," but rather that "the issues in the

first proceeding must have been such that the party opponent

had adequate notice for testing the credibility of the

testimony" sought to be admitted in the present proceeding.

McCormick on Evidence, §257, p. 261; 5 Wigmore, Evidence, 3d

Ed. 1940 §1388; See Fullerform Continuous Pipe Corp. v .

American Pipe Construction Co., 44 F.R.D. 453 (D. Ariz. 1968).

Clearly, defendants had the same motive and interest to cross-

examine the deponents in the prior proceeding as they had in

the present action. In both No. 71-C-559(2) and this case,

plaintiffs alleged an across-the-board pattern and practice
8/

of racial discrimination; in both actions the defendants have 

the same primary interest —  disproving the existence of 

racial discrimination. Compare Fullerform Continuous Pipe 

Corp. v. American Pipe & Construction Co., supra. Even 

assuming that different issues of law are present in this case 

than in the previous proceeding, clearly this assertion is 

immaterial since Rule 42 (a) merely requires a substantial 

identity of either law or fact. See Baldwin-Montrose Chemical

8/ In this case plaintiffs also alleged and proved specific 
unlawful discrimination. (See Plaintiffs' Brief at pp. 43-64).

13



Co v. Rothberq. 37 F.R.D. 354, 356 (S.D. N.Y. 1964).

Assuming further, as the defendants erroneously appear to, 

that this case is limited to "instances of specific discrim­

ination" a substantial identity of fact is present here be­

cause many of the instances of discrimination about which 

plaintiffs complain are the result of those same broad 

discriminatory patterns and practices. See Plaintiffs Brief 

at pp. 43-59.

Defendants further contend that the defendant MTP was 

not a party to the prior proceeding, and that counsel for 

defendants had no motive or interest in that proceeding 

adequately to protect MTP's interest. This assertion dis­

regards the fact that the parties in the Government's case had 

no difficulty imposing substantial affirmative responsibilit­

ies on the MTP even though it was not a named party (Tr. 334). 

(A. 798) As this result indicates MTP's interest must 

necessarily have been of concern to defendants' and MTP's 

interest in cross-examination was the same as the parties' 

interest who were present in that action, since the identical 

issue of racially discriminatory practices was raised. Thus, 

although it is generally the rule that a deposition is not 

admissible as to one not having the opportunity to be present 

at its taking, the presence of an adversary with the same 

motive and interest to cross-examine the deponent, and a 

substantial identity of issues in the two proceedings, provide

14



a well-recognized exception to the rule. See Ikerd v. Lapworth. 

435 F.2d 197 (7th Cir. 1970). As is the case here, the party 

in the present proceeding in Fullerform Continuous Pipe Corn. 

v. American Pipe & Construction Co., supra, was not 

present to cross-examine the deponents at the prior proceeding, 

but the substantial identity of issues and fact as well as the 

abundance of motive and interest possessed by defendants to 

cross-examine the deponents, provide the guarantee of trust­

worthiness sufficient to warrant admission of the relevant 

portions of the prior testimony. The result in Fullerform, 

supra should compel a similar finding here and thus the 

district court here erred in refusing to recognize that Rules 

26 (d) and 4 2 (a) when taken together authorize the use of the 

depositions and interrogatories offered by plaintiffs without 

a showing that the witnesses were unavailable. See Guerrino v . 

Ohio Casualty Insurance Co., 423 F.2d 419, 421 (3d Cir. 1970); 

Fullerform Continuous Pipe Corp. v. American Pipe & Construction 

Co., supra; Baldwin-Montrose Chemical Co. v. Rothberg, supra, 

at 356. In any event, the evidence in the Government's case 

offered by plaintiffs in this case primarily addresses the 

discriminatory practices of Local 396 and JAC, and not the MTP. 

Thus, even if not admissible as to the MTP the evidence in the 

Governments case remains admissible as to the other defendants.

Defendants further assert that although plaintiffs base

15



their argument on Rule 26(d) and 42 (a) F.R.C.P., the "answer 

actually is found in Rule 32 (a) (3) of the Federal Rules of

Civil Procedure, which sets out the requirements for the use 

of the deposition of a witness at trial" (Defendants' Brief 

at p. 26). Although defendants blithely ignore those decis­

ions, cited supra, which hold that availability of a witness 

is immaterial under Rules 26(d) and 4 2 (a) taken together, it 

is clear for yet another reason that Rule 32(a) (3) is

inapplicable.

B. Evidence From The Government's Case Is Admissible 
Under Rule 801 (d) (2), Federal Rules of Evidence

It is clear that defendants Local 396 and JAC were 

parties in No. 71-C-559(2) as well as in the present case. 

Defendants entered into a consent order with the United States 

Department of Justice in No. 71-C-559(2), based in part on an 

implied admission of the facts outlined in the depositions and 

answers to interrogatories. These admissions were made by 

ranking officials of Local 396, JAC or the MTP acting their 

capacity as agents of those entities. (See Plaintiff's Brief 

at n. 66) Hence these depositions fall well within the para­

meters of admissibility set forth in 801 (d) (2), Fed. Rules
9/Evid., 28 U.S.C.A.

9/ Rule 801 (d)(2) provides:

A statement is not hearsay if offered against a party and 
is A) his own statement, in either his individual or a 
representative capacity or B) a statement of which he has (CONT'D)

16



And such evidence is receivable whether or not the declarant 

is available or appears as a witness. See Weinstein1s 

Evidence, 5 8 OI (d) (2) [01] at p. 801-115.

Thus, the court below may have erred in accepting defend­

ants’ characterization of the admissions of the parties as prior 

recorded testimony. The admissions of a party-opponent are ex­

cluded from the category of hearsay, on the theory that the 

admissibility in evidence is the result of the adversary system 

rather than satisfaction of the conditions of the hearsay rule." 

Notes of Advisory Committee on Proposed Rules, Fed. Rules Evid., 

Rule 801 (d) (2), 28 U.S.C.A.; McCormick, Evidence, §262, p. 629. 

The decision by the court below flies in the face of the intent 

of the drafters of Rule 801 (d) (2), who contemplated "generous

treatment of this avenue of admissibility," Id.

Moreover, an analysis of the applicability of Rule 801(d)

(1) (A) indicates even more strongly that the depositions and

answers to interrogatories from No. 71-C-559(2) should not 

have been excluded from evidence. Applying that Rule to the 

instant case, even if the deponents had all appeared at the

9/ (CONT'D)

manifested his adoption or belief in its truth, or C) a state­
ment by a person authorized by him to make a statement concern­
ing the subject, or D) a statement by his agent or servant 
concerning a matter within the scope of his authority or employ­
ment, made during the existence of the relationship.
Pub. L. 93-595 §1, Jan. 2, 1975, 88 Stat. 1938.

-17-



subsequent proceeding and has been subject to cross-examina­

tion, the import and relevance of the deposition for their 

substantive value would not be diminished. If the 

deponents on cross-examination had offered testimony- 

inconsistent with their deposition (or even consistent), 

the statement in the deposition would still be admissible 

as substantive evidence, since under Rule 801(d) (1)(a) it

would not be hearsay.

In the face of the strong federal policy manifested in 

the rules favoring the admissibility of depositions as 

admissions under Rule 801(d)(1)(2) and as prior recorded 

testimony under Rules 26(d) and 42(a) F.R.Civ. P. conjoined, 

defendants' assertion of authority to the effect that dep­

ositions are to be disfavored as evidence deserves little 

credence. In the cases cited by defendants, the depositions 

either were not taken under circumstances affording an 

opportunity for cross-examination, or were based on a trial 

involving different issues, or were "obviously based upon 

hearsay and rumor," See United States v. Empire Gas Corp., 

393 F. Supp. 903 (W.D. Mo., 1975); Napier v. Bossard, 102 

F.2d 467 (2nd Cir. 1939); Salsman v. Witt, 466 F.2d 76 

(10th Cir. 1972). Those obvious infirmities

clearly do not obtain here. The court below committed error 

in excluding the depositions from evidence.

- 18



Finally, we note defendants implicit concession that the 

depositions and interrogatories in the Governments case are 

judicially noticeable in this case.

V.

THE DISTRICT COURTS' REFUSAL TO FIND 
THE DEFENDANTS TO HAVE VIOLATED THE 
TITLE VII AND SECTION 1981 RIGHTS OF 
THE NAMED PLAINTIFFS WAS ERROR______

The defendants do not appear to challenge, except in

conclusory fashion, the pervasive pattern of unlawful racial

discrimination disclosed in this record and summarized in

plaintiffs main brief. They assert that plaintiffs "have

relied exclusively on statistics as their source of proof

that defendants have engaged in racial discrimination"

(emphasis added) (Def. Br. at p. 28). While plaintiffs do 
10/rely on statistics, this record is replete with non-statis- 

tical evidence of unlawful racial discrimination against 

blacks seeking entrance into the trade and against the

10/ See e.g., Parham v. Southwestern Bell Telephone Co., 433 
F.2d 421, 426 (8th Cir. 1970)? United States v. Hayes 
International Corp., 456 F.2d 112,. 120 (5th Cir. 1972) and 
Sagers v. Yellow Freight System Inc., 529 F.2d 721, 729 
(5th Cir. 1976) as to the use of statistics in establishing 
a prima facie case of unlawful racial discrimination as to 
named plaintiffs in a Title VII class action. See also 
Resendis v. Lee Way Motor Freight, Inc., 505 F.2d 69 (5th 
Cir. 1974); Marquez v. Omaha Distr. Sales Office, Ford Div., 
440 F.2d 1157 (8th Cir. 1971) as to the application of 
statistics in individual cases.

- 19



]

plaintiffs individually. That evidence includes application 

of a discriminatory high school diploma requirement to 

plaintiff Rule; 2) application of unlawful tests to 

plaintiffs Coe and Vanderson; 3) refusal to issue service dues 

receipts to plaintiffs Rule, West and Nichols even though the 

Union had issued such service dues receipt to whites having no 

greater qualification; 4) application of the letter agreement 

to plaintiff Rule;and 5) the outright refusal to even talk to 

plaintiff West when he first sought referral.

"The reasons relating to the insistence of the Union for 

a referral system" (Def. Br. at p. 30) is plain enough - it 

wanted to preserve job security for its older members. (See 

Johnson depo. at p. 87) (A.HO). Its effect was to deprive previous­

ly excluded blacks, including plaintiff Rule (See PI. Br. at 

p. 32), of the opportunity to find work in the trade. Given 

the undisputed proof in this record of the effects of the new 

referral system on plaintiff Rule, the defendants statement 

at page 31 of their brief that "plaintiffs are unable to 

adduce a shred of evidence disclosing that any harm resulted 

to them by reason of the institution of the referral provis­

ions contained in the 1972 agreement" is mere brutum fiiinm.

At page 31 of their brief defendants suggest that 

plaintiffs seek to prohibit the coordinators of JAC and the 

MTP from referring trainees and apprentices. Nothing is

20



further from the fact. Plaintiffs merely seek establishment 

of a procedure that would assure trainees and apprentices 

an equal share of referrals. The coordinators of both 

programs would continue to solicit. They would merely be 

required to assure that trainees receive a fair share of all 

referrals.

The defendants continue to argue that the Flanigan test 

passes muster under Title VII because EEOC has registered no 

protest as to its use. (Def. Br. at p. 32). The Consent 

Decree prohibits use of any tests "unless the test has been 

properly differentially validated. . ." (Consent Decree at 

?8). JAC has never differentially validated the Flanigan 

test. True, JAC informed EEOC of its intention to rein­

troduce the test but JAC never complied with the precondit­

ion of having the Flanigan "properly differentially validated" 

and never submitted any validity study as required by the 

Consent Decree (Consent Decree 5[8) (A. 447) . JAC's reliance

on its self-serving letter to EEOC is much too thin a reed on 

which to base a claim for an exemption from the requirements 

of Title VII.

The defendants have said nothing in their briefs as to
u /

the claims of plaintiffs Davis and Nichols and Rule not fully

11/ Defendants' assertion at page 35 of their brief that 
plaintiff Rule was unavailable for any contact by the Union 
or JAC between 1966 and 1972 is refuted by their own 
description of his whereabouts. (See Def. Br. at p. 17). 
(CONT'D)

21



anticipated in plaintiffs main brief or that warrant 

reemphasis here. The claims of and entitlement to relief 

of plaintiffs Coe, Vanderson, Brown, and West are 

adequately discussed there as well. However out of an 

abundance of caution plaintiffs add the following comments 

addressed to certain factual or legal assertions made as 

to them.

A. George Coe

It serves JAC little to point out that plaintiff Coe

was afforded the opportunity to be reconsidered in 1971.

(Def. Br. at p. 32). Coe was unlawfully excluded from JAC

in 1970. See Parham v. Southwestern Bell Telephone Co.,

433 F.2d 421 (8th Cir. 1970) . JAC1s offer to subject him to

the same discriminatory selection procedures in 1971 is
12/

hardly a remedy.

B . Lonnie R. Vanderson

It appears that plaintiff Vanderson was in fact denied 

admission to JAC (See Def. Br. at p. 33) because of the 

unlawful JAC selection procedures. Defendants misconstrue

11/ (CONT'D)
He was in St. Louis for all but one year during that entire 
period. Whether or not he was available for contact would 
not shield the Union or JAC from liability in any event 
because they never made any attempt to reach him.
12/ The defendants' statement without citation to the record 
that JAC indentured 8 or 9 blacks in 1970 (Def. Br. at p. 32)may 
be inaccurate. Charles Adam, the JAC coordinator testified 
(CONT'D)

- 22



the proper allocation of the burden of proof at this point. It 

is JAC's burden to demonstrate by clear and convincing evidence 

that plaintiff Vanderson would not have been admitted to JAC 

even in the absence of these unlawful selection procedures. See 

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 259 (5th 

Cir. 1974), and Franks v. Bowman Transportation Co., 424 U.S. 747, 

772 (1976). JAC failed to meet its burden. Accordingly Vanderson 

is entitled to a remedy.

C. Johnnie I. Brown

The defendants assert that plaintiff Brown "offered no 

evidence that persons equally lacking in skills were referred by 

Local 396. . ." (Def. Br. at p. 34). The record is filled with 

evidence of the Union issuing service dues receipts to 
who were no more qualified for ironwork than plaintiff 

(Tr. 197, 394, 605-06). (A. 661, 858, 1068).

students
13/

Brown.

12/ (CONT'D)
that just 2 of the 80 individuals indentured into JAC in 1970 
were black (Tr. 611) (A. ). However, the JAC Admission No. 39
shows 84 whites and 8 blacks indentured that year. (A. 80 ).
13/ The following testimony in the Government case by Herman 
McGowan, former Business Agent for Local 396 clearly demonstrates 
that lack of qualification was no impediment to obtaining a 
"permit" for„ the privileged:

Q. (By Mr. Cronin) While you have been Business Agent, 
have summer employees ever been put to work by the 
union, temporary employees?

A * Yes* (CONTINUED)

23



(A. ). The defendants cite to Marquez v .

Omaha Distr. Sales Office. Ford Div.. 440 F.2d 1157 (8th 

Cir. 1971) is inapposite in the circumstances of this 

case. Clearly Title VII does not require the union to 

issue permits to or refer persons who are unqualified, 

see Marquez. supra, but the Union may not use qualifications 

standards to exclude minorities where it has not, as here, 

consistently applied those same standards to whites. See 

Franks v. Bowman Transportation Co., supra, 424 U.S. at 773, 

n. 32.

D. Willie West

Defendants ignore the district court's finding that 

plaintiff West applied in 1969. His subsequent refusal 

years later to enter the MTP or accept the opportunity for 

Union membership is irrelevant to the issue of liability.

See Parham, supra.

13/ (CONT'D)

*  * *  *

Q. Before you were Business Agent, was the same practice 
prevalent then too?

A. About five years ago I was running a job and my son
was out of school and I had him work two weeks for me. 
That is the only time he ever ironworked. (Emphasis 
added).

(McGowan Depo. at pp. 122-23). (A. 408-409).

24



Defendants also assert that because plaintiff West was

singled out for certain relief in the Consent Decree, he is 

in privity with the United States and therefore is not 

entitled to relief here. In support they cite two cases; 

neither is applicable. Cromwell v. County of Sac, 94 U.S.

351 was premised on a finding the former suit was brought for 

the sole use and benefit of the plaintiff in the later suit. 

This suit was brought under Section 706 of Title VII of the 

Civil Rights Act of 1964, as amended to vindicate personal 

rights guaranteed to plaintiff West thereunder. The 

Government sued under Section 707 to vindicate the broad 

public interest in eliminating unlawful practices. See 

United States v. Alleqhenv-Ludlum Industries, Inc., 517 F.2d 

826, 843 (5th Cir. 1975). Thus the Government sought to 

vindicate interests different from those of the plaintiffs. 

Unlike Miller v. Meinhard Commercial Corp., 462 F.2d 358 

(5th Cir. 1972) , a bankruptcy case, plaintiff West was not a 

part to any of the proceedings in the Government's case. 

Indeed they never received any notice prior to the entry of 

the Consent Decree that his rights were being compromised.

He never accepted the minimal relief offered thereunder and 

certainly did not sign any waiver of his rights.

25



VI.

DEFENDANTS' VIOLATION OF THE CONCILIATION AGREEMENT

Defendants' violations of the MCHR Conciliation Agreement 

and plaintiffs' entitlement to enforcement in federal court is 

adequately set forth in plaintiffs main brief.

More than ten years have elapsed since plaintiff Ronald 

Rule was denied the right to find a job in the St. Louis 

ironwork trade. In the intervening years the defendants have 

evaded or defied the clear mandate of the law and as a result 

he and other similarly situated blacks, including those that 

are named plaintiffs here, have suffered from its effects.

Not until late 1973 did the defendants take the first halting 

steps to remedy the effects of their violations of the law.

To this day, a full remedy has not been achieved and the 

district court has failed to provide one. See Albemarle Paper 

Co. v. Moody, supra. This Court must at last assure plain­

tiffs and similarly situated blacks their remedy.

VII

CONCLUSION

Respectfully submitted

Gilden & Dodson
722 Chestnut Street
St. Louis, Missouri 63101

26



JACK GREENBERG 
0. PETER SHERWOOD

10 Columbus Circle 
Suite 2030
New York, New York 10019

ATTORNEYS FOR APPELLANTS

CERTIFICATE OF SERVICE 

I hereby certify that on this day of March,

1977, I served a copy of the foregoing APPELLANTS'

REPLY BRIEF upon counsel for defendants, Barry J. Levine, Esq., 

Gruenberg, Souders & Levine, 905 Chemical Building, 721 Olive 

Street, St. Louis, Missouri 63101, by United States Mail, 

Postage prepaid.

27



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